FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

APR 12, 2007

THOMAS K. KAHN

CLERK

 Honorable Cecilia M. Altonaga, United States District Judge for the Southern District of *

Florida, sitting by designation.

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 06-11769

________________________

D. C. Docket No. 04-00367-CV-T-17-MSS

MICHAEL D. PORTER,

Plaintiff-Appellant,

versus

BOB WHITE,

in his official capacity as Sheriff of Pasco County,

JAMES GARY FAIRBANKS,

Defendants-Appellees.

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(April 12, 2007)

Before ANDERSON and MARCUS, Circuit Judges, and ALTONAGA, District *

Judge.

ANDERSON, Circuit Judge:
 Although Porter’s complaint erroneously invokes the Due Process Clause of the Fifth 1

Amendment, we will refer throughout this opinion to the Due Process Clause of the Fourteenth

Amendment, because Porter was prosecuted in state court and because his claims in this suit are

against a non-federal government official and a non-federal governmental entity.

 Porter also originally sued Fairbanks in his official capacity. The parties stipulated to 2

the dismissal of the official-capacity claim in the district court.

2

In 1988, Michael D. Porter was convicted of burglary, kidnapping, robbery,

aggravated battery, and sexual battery in Pasco County, Florida. He was sentenced

to life in prison without the possibility of parole. In 2002, we granted Porter’s

petition for habeas corpus and set aside his conviction after concluding that the

prosecution had violated his due process rights under Brady v. Maryland, 373 U.S.

83, 83 S. Ct. 1194 (1963), by failing to disclose to him, for use at trial, two

favorable police reports, both of which were material to his defense. Porter v.

Moore, No. 01-12311 (11th Cir. Feb. 4, 2002) (unpublished). Later in 2002, this

time equipped with the previously undisclosed reports, Porter was retried and

acquitted of all charges. 

In 2004, Porter filed this §1983 damages action against James G. Fairbanks,

the former Pasco County investigator who he alleges withheld from the State

Attorney’s Office the undisclosed police reports, thereby depriving Porter of his

Fourteenth Amendment due process right to a fair trial. In addition to his 1

individual-capacity claim against Fairbanks, Porter alleges two official-capacity 2
3

claims against Bob White, the former Pasco County Sheriff. The claims against

White assert that the county is liable in damages under §1983 for inadequately

training Fairbanks and other sheriff’s department employees in the proper methods

of disclosing Brady material, and that the county is similarly liable for maintaining

a custom or policy of not disclosing Brady material, which caused Fairbanks to

violate Porter’s due process rights.

Following discovery, the parties filed cross-motions for summary judgment. 

Fairbanks and White moved separately for summary judgment as to all claims. 

Porter moved for summary judgment only on his claim against Fairbanks. Denying

Porter’s motion and granting summary judgment in favor of Fairbanks and White,

the district court concluded that Fairbanks was entitled to qualified immunity on

Porter’s due process claim (because Fairbanks did not violate a “clearly

established” right) and that Porter had failed to create a genuine issue of material

fact on his claims against White. Porter appeals. Concluding that Porter’s due

process claim fails on the merits, we affirm.

I. BACKGROUND

Just before midnight on June 26, 1987, Morton Young was brutally attacked

and raped in her room at the LaRue Motel in Holiday, Florida. Following the

attack, Young made her way to a nearby gas station to seek help. William
4

Karcinski and Sandy Nicholas were dispatched to the gas station in response to a

call from the station attendant — at the time, Karcinski was a recently hired deputy

sheriff with the Pasco County Sheriff’s Office, and Nicholas was his field training

officer. Karcinski and Nicholas were the first law enforcement officials to respond. 

According to Karcinski, Young was “crying, nervous, [and] upset.” Karcinski

interviewed Young at the gas station. He asked her if she could provide a

description of her attacker and if she could recount the manner in which she had

been attacked. She did both. Karcinski recorded Young’s statements in a written

incident report.

Karcinski’s report reveals that Young was watching television in her

bedroom around 11:30 p.m. when she heard a noise coming from the kitchen/living

room area. She got up to investigate and was confronted by a man who wrapped a

belt around her neck and spun her around so she could not see his face. Telling her

to keep quiet, the man laid Young down on her stomach and said, “I bet you didn’t

know I was going to do this. I’ve been watching you.” The man tightened the belt

around Young’s neck, dragged her from room to room throughout the unit, and

tried repeatedly to have sex with her. After several failed attempts to obtain an

erection, the man finally succeeded and proceeded to rape Young while she was

submerged in a bathtub half filled with water. When he was finished, the man told
5

Young to lie face down on the couch because he was “going to take her money and

leave.” Young stayed on the couch for approximately half an hour before going to

the gas station for help.

Despite her view having been partially obscured during the attack, Young

was able to give Karcinski the following description of her attacker, which

Karcinski recorded in his report — Race: White. Age: 38-40. Height: 5’7”-5’9”. 

Weight: 150 lbs. Hair: Dark. Eyes: Unknown. Build: Thin. Young told Karcinski

that her attacker had been wearing blue jeans and an unknown type shirt.

Rather than going to the LaRue Motel to view the scene of the attack,

Karcinski and Nicholas accompanied Young to the local hospital. At the hospital,

they met the lead investigator assigned to the case, James G. Fairbanks. Fairbanks

also worked for the Pasco County Sheriff’s Office. Karcinski proceeded to tell

Fairbanks all of the information he had learned from Young. Karcinski says he

informed Fairbanks of Young’s description of the attacker during their initial

conversation. Karcinski did not provide Fairbanks a copy of his written report at

the hospital, however, because it was not yet complete and because it had not been

approved by Karcinski’s supervisor. Fairbanks does not remember Karcinski

giving him a description of Young’s attacker at the hospital. Fairbanks says he first

learned of the description Young gave Karcinski when he received Karcinski’s
6

report on June 28.

After speaking to Karcinski and Nicholas, Fairbanks interviewed Young

while still at the hospital. Young recounted the details of the attack. She told

Fairbanks that she could not provide a description of her attacker’s face, but she

was able to give him a general physical description. According to Fairbanks,

Young stated that her attacker was a white male, 6’1” in height, weighed 150 lbs.,

had dark wavy hair, and appeared to be in his late 30s. Fairbanks recorded

Young’s statements in a written report dated July 7, 1987. 

Following their meeting with Fairbanks at the hospital, Karcinski and

Nicholas were sent to the LaRue Motel to monitor the scene of the crime. There,

they encountered Pasco County deputy sheriff Thomas Hendrickson, who had been

dispatched to the motel shortly after the attack was reported. While securing the

scene upon his arrival at the motel, Hendrickson observed a Marlboro cigarette

lying on the floor of the kitchen in the unit where Young had been attacked. He

later conducted a sweep of the area surrounding the crime scene and spoke to a

handful of individuals. One of the individuals with whom Hendrickson spoke was

Tony Hawkins. Hawkins, whom Hendrickson observed smoking a Marlboro

cigarette, told Hendrickson that he had come to the motel at approximately 1:30

a.m. to visit his friend Robert George, who lived there. Hawkins and George were
7

sitting at an outdoor table having a beer when Hendrickson encountered them. 

Hendrickson also spoke to George. Neither Hawkins nor George was able to relate

any information Hendrickson considered particularly useful to the investigation. 

Hendrickson summarized in a written report his conversations with George,

Hawkins, and two other individuals present at the motel. Included in

Hendrickson’s report was the following description of Hawkins: Born in 1944;

5’9” in height; 160 lbs.; brown hair; blue eyes. Hendrickson also recorded the fact

that Hawkins smoked Marlboro cigarettes. At the time he spoke with these four

individuals, Hendrickson was aware of the description Young had given Karcinski

at the gas station. Hendrickson recognized that, while similar, the description of

Hawkins and the description of the attacker Young had provided Karcinski were

not identical. The descriptions were not similar enough to make Hendrickson

suspect that Hawkins was the attacker. Had his suspicions been raised,

Hendrickson says, he “would have immediately contacted the case detective and

made sure he stuck around.” According to the sheriff department policy in place at

the time, Hendrickson would have been required to complete his report and place it

in a box for his sergeant’s approval by the end of his shift. From there, the report

would have been forwarded to the lead detective on the case, Fairbanks.

Fairbanks received Hendrickson’s report on June 28, the same day he
8

received Karcinski’s. Fairbanks had an opportunity at this point to gauge the

similarities and differences between the two descriptions Young gave of her

attacker and the description of Hawkins recorded by Hendrickson. Fairbanks

conducted a follow up interview with Young three or four days after the attack. 

During this interview, Young and the manager of the LaRue Motel gave Fairbanks

the name of Michael Porter as someone who should be investigated. Porter’s name

surfaced after the motel manager had reviewed the guest records and determined

that Porter and his wife, Susan, who were going through a bitter separation, had

stayed at the motel shortly before the attack. Given the confirmation of his

presence at the motel just days before June 26, Porter quickly became a target of

the investigation because, according to Karcinski’s report, Young’s attacker had

said to her, “I bet you didn’t know I was going to do this. I’ve been watching you.” 

Young never suggested to Fairbanks that she thought Hawkins was the one who

attacked her.

Fairbanks informed Susan that her husband was being investigated as a

suspect in the June 26 attack. Fairbanks and Susan met or spoke on the telephone

several times. During one of their first discussions, Susan told Fairbanks that

Porter had a propensity for engaging in violent sex and that, at times, she feared for

her physical safety. Fairbanks took no steps to corroborate Susan’s allegations. 
9

Fairbanks homed in on Porter as a potential suspect even more intently after

Susan, during one of her discussions with Fairbanks, reported that Porter had taken

credit for the June 26 attack and had confessed specific details about it. According

to Susan, Porter told her in mid-August that the attack at the motel was fueled by

his anger at Susan for separating from him. He further stated that he broke into the

motel intending to kill a woman. When he learned of Porter’s statements,

Fairbanks thought that the crime-related facts Porter divulged to Susan were facts

that could have been known only to the attacker. Fairbanks was unaware at the

time he spoke to Susan that a local newspaper had published a story containing

many details of the attack shortly after June 26.

At some point during the investigation, Fairbanks entered Porter’s name into

a computer database of criminal offenders and discovered information about an

unsolved crime in which a white male had attempted to climb through the window

of a young woman’s apartment, but was chased off by the woman’s screams for

help. The victim of the burglary identified a nearby neighbor as the perpetrator. 

The neighbor’s name was Michael Porter. The victim filed a police report

describing the incident. Her description included the fact that a belt was found on

the balcony underneath her apartment window. Recognizing the similarity between

the two attacks, Fairbanks attempted unsuccessfully to locate the victim who had
10

filed the police report. He was not able to determine whether the Michael Porter he

was investigating for the LaRue Motel attack lived near the victim of the earlier

crime at the time it occurred.

After a nearly three month investigation, Fairbanks arrested Porter on

September 24, 1987. In his arrest report, Fairbanks listed Porter as 6’1” in height,

stated that he was born in 1960, that he weighed 170 lbs., and that he had blue eyes

and black hair. This physical description was not radically different from the

description Young had given Fairbanks in the hospital on the night of the attack,

although it did differ substantially from the description Young gave Karcinski at

the gas station and from the description of Tony Hawkins contained in

Hendrickson’s report.

Porter was brought to trial on August 15, 1988. Declan Mansfield

prosecuted the case on behalf of the State Attorney’s Office. Assistant Public

Defender Stephen Dehnart represented Porter. Dehnart was not very familiar with

the case, however. He had inherited it only three or four weeks before trial after

Porter’s original attorney, Assistant Public Defender Michael McMillan, who had

handled pretrial discovery, was forced to step aside due to a serious viral infection

that resulted in a coma lasting three or four months. McMillan testified in his

deposition in this case that his illness in 1988 disrupted the orderly discovery
 An “invest” is a meeting between the law enforcement officers handling an investigation 3

and the prosecutor, at which time a decision is made regarding whether the State will file charges

11

process. McMillan did not keep a list chronicling which police reports he received. 

McMillan does not remember receiving either the Karcinski or the Hendrickson

report during the time he represented Porter. Dehnart likewise did not have either

the Karcinski or the Hendrickson report during the 1988 trial. Porter was

convicted. Two months later, he was sentenced to life in prison without the

possibility of parole. 

As the lead investigator on the case, it was Fairbanks’s obligation to ensure

that all police reports prepared in connection with the investigation were turned

over to the State Attorney’s Office. Fairbanks acknowledged his responsibility,

testifying in a deposition for this case: “Back then, I don’t know what the State

Attorney’s Office obligation was. And that wasn’t my job to know what their

obligation was. But I had an obligation to furnish them with the reports, which I

did. Yes, sir.” While Fairbanks cannot recall what the procedure was in 1988 for

forwarding police reports to the State Attorney’s Office, he is confident he

complied with it: 

[I]t was my responsibility to get the reports together and send them

over . . . and I don’t recall whether I hand-carried them to the front

desk at the State Attorney’s Office or . . . whether I took [them] over

[when] we were having an invest, or whether there was a box in the 3
against the subject of the investigation.

12

office. I just don’t remember exactly what the procedure was. But I

know I followed the procedure. I always followed the procedure, and

[had] no reason not to.

Fairbanks never followed up with the State Attorney’s Office to see whether

the reports were actually received. Fairbanks cannot say for certain whether the

reports were in Mansfield’s file before or during the 1988 trial. His uncertainty

notwithstanding, Fairbanks testified that the State Attorney’s Office must have

received the reports before the invest proceeding was held because, if Mansfield

had not had copies of the “original reports of the offense” during the invest, he

would have “jumped all over me” and “eaten me alive.” Mansfield did neither.

Mansfield has no specific recollection of either of the reports. Mansfield

testified, however, that he habitually turned over to the defense all police reports he

received. He testified that if the defense failed to get a particular report, it must

have been because the report was never received in the State Attorney’s Office. 

Mansfield’s practice in 1987-1988 was to turn over to defense attorneys all police

reports, so long as the reports were “connected to the case.” According to

Mansfield, the State Attorney’s Office maintained no record-keeping system to

track which reports were turned over to the defense in a given case and which ones

were not. Mansfield testified that police reports “would be handed over at some
13

point” by the appropriate officer, but that “I’m not quite sure how it got into our

file because it went to a secretary who would put it in a file and then you would at

some point get it. It wasn’t handed to you personally.” Mansfield admitted,

however, that police reports were, on occasion, inadvertently left out of discovery

packets sent to defense counsel. In fact, when asked at his deposition whether this

ever happened, Mansfield responded: “Absolutely. Absolutely.”

In 1994, in connection with a federal habeas petition filed by Porter, Charles

Fulgieri, an investigator with the Federal Public Defender’s Office, began looking

into the circumstances surrounding Porter’s conviction. As part of his

investigation, Fulgieri traveled to the Dade City location of the Pasco County

Sheriff’s Office where he was told that records from the Porter case were being

stored. Fulgieri was given a packet of documents. Included in the packet were the

Fairbanks report, the Hendrickson report, the Karcinski report, and a report

prepared by a crime scene technician. Shortly after receiving these documents,

Fulgieri went to review the Porter file in the state public defender’s office. 

According to Fulgieri, the state file contained no police reports at all — not even

Fairbanks’s report, which Porter has never alleged was withheld from the

prosecution or the defense.

Fulgieri tried to speak with Fairbanks about the matter, but Fairbanks refused
14

to speak to him without the presence of an Assistant United States Attorney. 

Fulgieri never spoke with Karcinski, Hendrickson, or Mansfield. Denhart refused

to speak with Fulgieri. McMillan, who did speak with Fulgieri, could not provide

any information about the reports.

On the basis of the information learned by Fulgieri, Porter added to his

federal habeas petition an allegation that the State violated his due process rights

under Brady when it failed to turn over the Karcinski and Hendrickson reports. 

After Porter exhausted his Brady claim in state court, the district court rejected the

claim on the merits. The district court determined that the reports were favorable

to Porter’s defense and were suppressed by the prosecution, but that they were not

“material” for Brady purposes because there was not “a reasonable probability that

the result of this trial would have been different” if they had been disclosed. The

district court denied Porter’s habeas petition. On appeal, Porter challenged the

district court’s rejection of his Brady claim. We concluded that the reports were

material, reversed the district court, and granted Porter’s habeas petition. On

retrial, in 2002, Porter was acquitted of all charges.

In 2004, Porter filed this §1983 action, alleging that “James Gary Fairbanks

illegally and wrongfully suppressed material exculpatory evidence in violation of

Plaintiff’s rights under the [Fourteenth] Amendment to the United States
15

Constitution.” Compl. ¶1. Also, as we noted at the outset, Porter alleged two

claims against Sheriff White. The district court granted summary judgment in

favor of Fairbanks and White. Porter appeals.

II. STANDARD OF REVIEW

We review de novo a district court’s grant of summary judgment, applying

the same standards that bound the district court and viewing the evidence and all

reasonable inferences in the light most favorable to the non-moving party. See

Drago v. Jenne, 453 F.3d 1301, 1305 (11th Cir. 2006). “Summary judgment is

appropriate when ‘there is no genuine issue as to any material fact and . . . the

moving party is entitled to judgment as a matter of law.’” Id. (quoting Fed.R.Civ.P.

56(c)).

III. DISCUSSION

The district court held that Fairbanks was entitled to qualified immunity on

Porter’s due process claim, concluding that Fairbanks had not violated a “clearly

established” principle of constitutional law; namely, the due process principle that

forbids police from intentionally withholding Brady material from prosecutors. 

Fairbanks urges us to affirm the district court’s qualified-immunity determination

because, as of 1988, the time at which Fairbanks is alleged to have violated

Porter’s Fourteenth Amendment rights, the only relevant due process principle
16

“clearly established” by binding precedent was that police officers could not

intentionally withhold from prosecutors material evidence favorable to the defense

— conduct that Fairbanks says Porter cannot prove. See McMillian v. Johnson, 88

F.3d 1554, 1569 (11th Cir. 1996) (“Our case law clearly established [as of 1987

and 1988] that an accused’s due process rights are violated when the police conceal

exculpatory or impeachment evidence”). Porter, on the other hand, who reads our

decision in McMillian more broadly, urges us to reverse the district court’s

qualified-immunity determination because, in his view, McMillian stands for the

proposition that, as of 1988, the due process clause prohibited any failure on the

part of police officers to disclose to prosecutors material evidence favorable to the

defense — whether an officer acted intentionally, negligently, or blamelessly. 

Porter also argues that, even if his reading of McMillian is mistaken, he has

produced “ample circumstantial evidence” to show that Fairbanks “more likely

than not intentionally withheld the two missing reports from the prosecutor.” For

the reasons set forth below, we conclude that Porter’s due process claim fails on the

merits of the constitutional question. This conclusion, of course, moots the “clearly

established” inquiry. 

When confronted with a government official’s invocation of qualified

immunity, we have been instructed by the Supreme Court to first decide the
17

threshold issue — before addressing whether the particular right was “clearly

established” at the time it was allegedly violated — of whether the official has

deprived the plaintiff of a constitutional right at all. See Brosseau v. Haugen, 543

U.S. 194, 197, 125 S. Ct. 596, 598 (2004); Saucier v. Katz, 533 U.S. 194, 201, 121

S. Ct. 2151, 2156 (2001) (“insisting [that courts] turn[] to the existence or

nonexistence of a constitutional right as the first inquiry”); Wilson v. Layne, 526

U.S. 603, 609, 119 S. Ct. 1692, 1697 (1999) (“A court evaluating a claim of

qualified immunity ‘must first determine whether the plaintiff has alleged the

deprivation of an actual constitutional right at all . . . .’”) (citations omitted); Conn

v. Gabbert, 526 U.S. 286, 290, 119 S. Ct. 1292, 1295 (1999); County of

Sacramento v. Lewis, 523 U.S. 833, 841 n.5, 118 S. Ct. 1708, 1714 n.5 (1998);

Siegert v. Gilley, 500 U.S. 226, 232, 111 S. Ct. 1789, 1793 (1991). We proceed to

the “clearly established” prong of the qualified-immunity inquiry — the prong on

which Fairbanks and Porter have focused — only “[i]f a constitutional right would

have been violated under the plaintiff’s version of the facts.” Lee v. Ferraro, 284

F.3d 1188, 1194 (11th Cir. 2002); see Saucier, 533 U.S. at 201, 121 S. Ct. at 2156

(“If no constitutional right would have been violated were the allegations

established, there is no necessity for further inquiries concerning qualified

immunity”). 
 The right protected by the Brady rule is “the defendant’s right to a fair trial mandated by 4

the Due Process Clause of the [Fourteenth] Amendment to the Constitution.” United States v.

Agurs, 427 U.S. 97, 107, 96 S. Ct. 2392, 2399 (1976); see Grayson v. King, 460 F.3d 1328, 1337

(11th Cir. 2006) (“The Brady rule is grounded in a defendant’s right to a fair trial”). The right to

a fair trial, in turn, stems from the procedural sphere of the Due Process Clause. See Daniels v.

Williams, 474 U.S. 327, 337, 106 S. Ct. 677, 678 (1986) (The Due Process Clause of the

Fourteenth Amendment contains “a guarantee of fair procedure, sometimes referred to as

‘procedural due process’: the State may not . . . imprison . . . a defendant without giving him a

fair trial”) (Stevens, J., concurring).

18

Given the Supreme Court’s insistence that we resolve assertions of qualified

immunity in this manner, we first determine the merits of Porter’s claim — whether

he has produced evidence from which a reasonable juror could conclude that

Fairbanks’s conduct deprived him of a right guaranteed by the Due Process Clause. 

Our first task is to examine the right alleged to have been violated by Fairbanks. 

See Lewis, 523 U.S. at 841 n.5, 118 S. Ct. at 1714 n.5 (“As in any action under

§ 1983, the first step is to identify the exact contours of the underlying right said to

have been violated”); see also Baker v. McCollan, 443 U.S. 137, 140, 99 S. Ct.

2689, 2692 (1979) (“The first inquiry in any § 1983 suit” is “to isolate the precise

constitutional violation with which [the defendant] is charged”).

As noted at the outset, we have already held that Porter’s procedural due

process right to a fair trial was violated in 1988. See Porter v. Moore, No. 01- 4

12311 (11th Cir. Feb. 4, 2002) (unpublished). Specifically, we held that Porter’s

right under Brady to receive evidence favorable to his defense, evidence that in
19

Porter’s case had both exculpatory and impeachment value, was violated “when the

prosecutor withheld favorable police reports from Porter’s defense counsel.” Id. at

3. We held that the undisclosed reports were material for Brady purposes because

Porter had “shown a reasonable probability that the result of the trial would have

been different if the police reports had been produced and available.” Id. at 4. Our

determination that Porter’s procedural due process rights were violated by the

prosecution’s failure to observe its Brady obligations therefore caused us to grant

Porter’s petition for habeas corpus and set aside his conviction. Porter maintains in

the present suit that Fairbanks caused the underlying Brady violation and that his

conduct in causing that due process violation makes him properly liable for

damages under §1983. 

Our discussion of Porter’s claim against Fairbanks proceeds in three parts. 

First, we note that it remains an open question in this Circuit whether the

procedural due process violation that resulted from the prosecution’s nondisclosure

of Brady material is the same constitutional violation that subjects Fairbanks to

civil liability under § 1983 or whether Porter’s claim against Fairbanks is

predicated on an independent due process violation. See Jean v. Collins, 221 F.3d

656, 659 (4th Cir. 2000) (en banc) (Wilkinson, C.J., concurring) (noting, on similar

facts, that “[t]he question before us now is whether there was an additional
20

constitutional violation in this case”) (emphasis added). Second, we consider

whether an official in Fairbanks’s position, whose conduct allegedly caused a

Brady violation, can be said to have caused a constitutional deprivation if his

conduct is no more than merely negligent. Third, we consider whether there is

evidence in this case from which a reasonable juror could conclude that Fairbanks

is liable under § 1983 for violating Porter’s due process rights.

A. Porter’s Claim Against Fairbanks in

this § 1983 Action for Damages

In McMillian, a §1983 action against law enforcement officials that involved

allegations similar to Porter’s, we stated that “§ 1983 provides a cause of action for

a violation of the due process right to a fair trial that is protected by Brady.”

88 F.3d at 1567 n.12. After various Brady violations caused his murder conviction

and death sentence to be set aside on appeal, McMillian sued several law

enforcement officials who he alleged “suppressed and withheld exculpatory and

impeachment evidence in violation of [McMillian’s] due process rights under the

Fourteenth Amendment.” Id. at 1560. Treating the underlying Brady violation as

the basis for McMillian’s allegations against the law enforcement officials, the

district court denied qualified immunity to three of the officials, holding that

McMillian had created a genuine issue of material fact on the question of whether
 Because of the interlocutory posture of the appeal, and because the district court had 5

concluded that McMillian adduced sufficient evidence to create a genuine issue of fact regarding

whether the officials’ conduct was intentional, we proceeded directly to the purely legal question

presented by the “clearly established” prong of the qualified-immunity analysis. In other words,

we did not have occasion to determine the appropriate level of culpability necessary to state the

sort of due process claim McMillian asserted. As to McMillian’s due process claim against the

officials, we simply assumed that the officials acted intentionally and noted for qualifiedimmunity purposes that if the officials intentionally withheld what they knew to be Brady

material, then they violated clearly established law. Our decision in McMillian, therefore, left

open the question of whether less-than-intentional conduct would suffice to establish a Bradytype due process claim against law enforcement officials. 

21

the officials “intentionally withheld several pieces of exculpatory and impeachment

evidence from the . . . prosecutor.” Id. at 1566. The district court further

determined that a law enforcement official’s intentional withholding of Brady

material from a prosecutor was prohibited by clearly established due process

principles at the time of the alleged withholding. Id. On the officials’ interlocutory

appeal, we accepted as true McMillian’s allegations of intentional withholding

5

and, in the process of considering whether the officials violated McMillian’s

clearly established due process rights, we recognized that a handful of courts had

permitted Brady-type due process claims to be pursued against law enforcement

officials under §1983. Id. at 1567 n.12. We agreed and held that, under §1983, a

plaintiff may assert a due process claim for money damages against a police officer. 

Id. Thus, McMillian establishes Porter’s right to pursue this §1983 action for
 Although the statute of limitations for § 1983 claims arising in Florida is four years, see

6

Chappell v. Rich, 340 F.3d 1279, 1283 (11th Cir. 2003), Porter’s due process claim against

Fairbanks is not time-barred, because, under Heck v. Humphrey, 512 U.S. 477, 489-90, 114 S.

Ct. 2364, 2374 (1994), his § 1983 cause of action, seeking as it does damages to redress time

spent in prison following conviction at a constitutionally deficient trial, did not accrue until we

vacated his conviction in 2002. Id. (“[A] § 1983 cause of action for damages attributable to an

unconstitutional conviction or sentence does not accrue until the conviction or sentence has been

invalidated”). Porter’s § 1983 suit for damages, filed in 2004, is thus timely.

 While the “procedural” versus “substantive” due process distinction does not affect the 7

outcome of this case, it might, in a future case, be significant in light of Parratt v. Taylor, 451

U.S. 527, 101 S. Ct. 1908 (1981), overruled in part by Daniels, 474 U.S. at 330-31, 106 S. Ct. at

664, and Zinermon v. Burch, 494 U.S. 113, 110 S. Ct. 975 (1990).

 Injury flowing from a procedural due process violation (i.e., incarceration following a

8

constitutionally unfair trial) that results from a prosecutor’s failure to comply with the Brady rule

cannot be redressed by a civil damages action against the prosecutor under §1983 because the

prosecutor is absolutely immune from such liability. See Imbler v. Pachtman, 424 U.S. 409, 427,

430, 96 S. Ct. 984, 993, 995 (1976) (prosecutors entitled to absolute immunity from suit when

engaged in “activities . . . intimately associated with the judicial phase of the criminal process,”

22

damages against Fairbanks.6

It is unnecessary in this case to determine whether Porter’s claim sounds in

procedural or substantive due process. That is because, as discussed below, we 7

would reach the same result using the same analysis regardless of how the claim is

characterized.

B. The Level of Culpability Necessary to 

Subject a Law Enforcement Official to §1983 

Liability for Causing a Brady Violation

 In the criminal or habeas context, a prosecutor’s culpability is irrelevant for

purposes of demonstrating a procedural due process violation based on a Brady

nondisclosure. That is, a defendant establishes a Brady violation in the criminal or 8
even though, in some instances, “this immunity does leave the genuinely wronged defendant

without civil redress against a prosecutor whose malicious or dishonest action deprives him of

liberty”); see also Broam v. Bogan, 320 F.3d 1023, 1030 (9th Cir. 2003) (prosecutor’s failure to

comply with Brady rule involves “an exercise of the prosecutorial function and entitles [him] to

absolute immunity from a civil suit for damages”); Long v. Satz, 181 F.3d 1275, 1279 (11th Cir.

1999); Fullman v. Graddick, 739 F.2d 553, 558-59 (11th Cir. 1984).

23

habeas context whenever he can show that favorable evidence material to his case

was not disclosed to the defense, “irrespective of the good faith or bad faith of the

prosecution.” Brady, 373 U.S. at 87, 83 S. Ct. at 1197 (emphasis added); see

Strickler v. Greene, 527 U.S. 263, 288, 119 S. Ct. 1936, 1952 (1999) (“[U]nder

Brady an inadvertent nondisclosure has the same impact on the fairness of the

proceedings as deliberate concealment”); Agurs, 427 U.S. at 110, 96 S. Ct. at 2401

(“If the suppression of evidence results in constitutional error, it is because of the

character of the evidence, not the character of the prosecutor”). The Brady rule

thus imposes a no-fault standard of care on the prosecutor. If favorable, material

evidence exclusively in the hands of the prosecution team fails to reach the defense

— for whatever reason — and the defendant is subsequently convicted, the

prosecution is charged with a Brady violation, and the defendant is entitled to a

new trial. It is this no-fault standard of care that Porter says should apply to

Fairbanks in this §1983 suit for damages. While Porter alleges alternatively that

Fairbanks’s failure to disclose was intentional, he nevertheless argues that intent

does not matter because Fairbanks may be held liable in damages regardless of his
24

culpability. Porter Br. at 21 (“Since Brady claims do not contain a subjective

component, whether Detective Fairbanks acted intentionally is irrelevant”).

To support his argument that a no-fault standard of care should apply to

Fairbanks in the §1983 context, Porter reasons as follows: (1) a Brady violation is a

due process deprivation; (2) Brady may be violated without regard to culpability;

(3) McMillian holds that such a due process deprivation may be redressed under

§1983; (4) §1983 contains no state-of-mind requirement independent of that

necessary to violate the underlying constitutional provision; (5) Fairbanks caused

the underlying Brady violation; and thus (6) under §1983, Fairbanks may be held

liable for a due process deprivation without regard to his culpability. We disagree. 

We reject this reasoning as inconsistent with Supreme Court precedent. We hold

that the no-fault standard of care Brady imposes on prosecutors in the criminal or

habeas context has no place in a §1983 damages action against a law enforcement

official in which the plaintiff alleges a violation of due process.

Porter’s argument is reduced to the following proposition: because the

Supreme Court in Brady held that a due process violation occurs without regard to

good or bad faith, and because Porter has asserted a Brady claim, he should not be

required to show that Fairbanks acted with any level of culpability. The flaw in

Porter’s argument is that his claim is not a pure Brady claim. As our McMillian
 See Jean, 221 F.3d at 659 (Wilkinson, C.J., concurring) (discussing the case law extant 9

as of 2000).

25

opinion pointed out, the constitutional duty described by Brady and its progeny —

the duty to disclose favorable, material evidence to the defense — is imposed on

the prosecutor. See Jean, 221 F.3d at 660 (Wilkinson, C.J., concurring) (stating

that “to speak of the duty binding police officers as a Brady duty is simply

incorrect,” and pointing to Supreme Court cases placing the duty upon the

prosecution; Brady, 373 U.S. at 87, 83 S. Ct. at 1197; Giglio v. United States, 405

U.S. 150, 154, 92 S. Ct. 763, 766 (1972); Moore v. Illinois, 408 U.S. 786, 794, 92

S. Ct. 2562, 2568 (1972); Agurs, 427 U.S. at 108, 96 S. Ct. at 2400; United States

v. Bagley, 473 U.S. 667, 675-76, 105 S. Ct. 3375, 3379-80 (1985); Kyles v.

Whitley, 514 U.S. 419, 437-38, 115 S. Ct. 1555, 1567-68 (1995)). Although our

binding precedent in McMillian establishes that the correlative duty on the part of

law enforcement officials is to turn over exculpatory evidence to the prosecution,

88 F.3d at 1567, neither McMillian nor any other binding precedent elaborates on 9

the scope of that duty. For example, although McMillian did hold that the law was

clearly established as of 1987 and 1988 that a police officer had a duty not to

intentionally withhold exculpatory evidence from the prosecution, id. at 1568-69,

the opinion did not address whether less-than-intentional conduct on the part of a
 In addition to showing breach and injury, Porter must, to prevail on his § 1983 claim, 10

demonstrate that Fairbanks caused the constitutional deprivation. See Troupe v. Sarasota

County, 419 F.3d 1160, 1165 (11th Cir. 2005) (“A §1983 claim requires proof of an affirmative

causal connection between the defendant’s acts or omissions and the alleged constitutional

deprivation”); see also Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 692, 98 S. Ct. 2018, 2036

(1978) (“Congress did not intend § 1983 liability to attach where [] causation [i]s absent”).

26

police officer would violate the duty. See supra n.5.

Thus, it is for the alleged breach of this correlative duty — Fairbanks’s duty

as a law enforcement official to turn over exculpatory evidence to the prosecution

— and the loss of liberty resulting therefrom, that Porter must be deemed to be

seeking compensation in this case. We address as a matter of first impression

whether Porter must demonstrate that Fairbanks acted with a level of culpability

consisting of more than mere negligence.10

Porter’s allegation in this §1983 action — that Fairbanks’s failure to disclose

the police reports to the prosecution caused the denial of his due process right to a

fair trial — amounts to an allegation that Fairbanks committed a constitutional tort. 

See 42 U.S.C. §1983 (“Every person who, [under color of state law], subjects, or

causes to be subjected, any citizen of the United States . . . to the deprivation of any

rights . . . secured by the Constitution . . . shall be liable to the party injured”); see

also Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 305-06, 106 S. Ct. 2537,

2542 (1986) (“We have repeatedly noted that 42 U.S.C. §1983 creates a species of

tort liability in favor of persons who are deprived of rights, privileges, or
27

immunities secured to them by the Constitution”) (citations and internal quotation

marks omitted); City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S.

687, 727, 119 S. Ct. 1624, 1647 (1999) (“There is no doubt that the cause of action

created by §1983 is, and was always regarded as, a tort claim”) (Scalia, J.,

concurring). This is reflected in part by the nature of the relief Porter seeks in his

complaint — monetary compensation sufficient to make him whole for the years he

spent in prison following his 1988 conviction. See Compl. ¶1 (“This is an action

for damages to compensate Michael D. Porter for the fifteen years he spent in

Florida jails and prisons after he was . . . wrongfully convicted”); see Stachura, 477

U.S. at 306-07, 106 S. Ct. at 2542-43 (“Punitive damages aside, damages in tort

cases are designed to provide compensation for the injury caused to plaintiff by

defendant’s breach of duty” and “Congress adopted this common-law system of

recovery when it established liability for constitutional torts;” thus, “the basic

purpose of §1983 damages is to compensate persons for injuries that are caused by

the deprivation of constitutional rights”) (citations and internal quotation marks

omitted). 

Not every action by a state actor that results in a loss of liberty under the Due

Process Clause gives rise to liability under §1983. The Supreme Court, addressing

the question of “when tortious conduct by state officials rises to the level of a
28

constitutional tort” for purposes of an alleged due process violation, held in

Daniels v. Williams that “the Due Process Clause is simply not implicated by a

negligent act of an official causing unintended loss of or injury to life, liberty, or

property.” 474 U.S. 327, 328, 106 S. Ct. 662, 663 (1986). In so holding, the Court

in Daniels partially overruled its decision in Parratt v. Taylor, 451 U.S. 527, 101

S. Ct. 1908 (1981), to the extent that Parratt had recognized negligent conduct as

sufficiently culpable to constitute a deprivation under the Due Process Clause. 

474 U.S. at 330-31, 106 S. Ct. at 664. The Court reiterated that § 1983 “contains

no state-of-mind requirement independent of that necessary to state a violation of

the underlying constitutional right.” Id. at 330, 106 S. Ct. at 664. 

Because the source of the underlying right allegedly violated in Daniels was

the Due Process Clause, the Court looked to its text — “[N]or shall any State

deprive any person of life, liberty, or property, without due process of law” — to

determine whether that constitutional provision mandated a particular level of

culpability as a prerequisite for liability. The Court noted that “the word ‘deprive’

in the Due Process Clause connote[s] more than a negligent act,” which, the Court

stated, explains why the guarantee of due process has historically “been applied to

deliberate decisions of government officials.” Id. at 330, 331, 106 S. Ct. at 664,

665 (emphasis in original). Emphasizing the point that mere negligent conduct
29

does not “wor[k] a deprivation in the constitutional sense,” id. at 330, 106 S. Ct. at

664 (alteration and emphasis in original), the Court has since stated, citing Daniels,

that “the Constitution does not guarantee due care on the part of state officials;

liability for negligently inflicted harm is categorically beneath the threshold of

constitutional due process.” Lewis, 523 U.S. at 849, 118 S. Ct. at 1718. 

As noted above, we find it unnecessary in this case to determine whether

Porter’s claim sounds in procedural or substantive due process. This is so in part

because our conclusion regarding the level of culpability necessary to sustain a due

process claim seeking damages against a state official is not dependent on the

characterization of Porter’s claim. In Davidson v. Cannon, a case decided on the

same day as Daniels, the Court held that “the protections of the Due Process

Clause, whether procedural or substantive, are just not triggered by lack of due

care.” 474 U.S. 344, 348, 106 S. Ct. 668, 671 (1986) (emphasis added); see Lewis,

523 U.S. at 849, 118 S. Ct. at 1718 (noting that Cannon “clarif[ies] that Daniels

applies to substantive, as well as procedural, due process”).

On the authority of Daniels and Cannon, we hold that mere negligence or

inadvertence on the part of a law enforcement official in failing to turn over Brady

material to the prosecution, which in turn causes a defendant to be convicted at a

trial that does not meet the fairness requirements imposed by the Due Process
 We conclude below that the evidence in this case would, at best, support only an

11

inference of mere negligence on the part of Fairbanks; therefore, like the Court in Daniels, we

have no reason to consider whether, in the context of a claim like Porter’s, “something less than

intentional conduct, such as recklessness or ‘gross negligence,’ is enough to trigger the

protections of the Due Process Clause.” Daniels, 474 U.S. at 334 n.3, 106 S. Ct. at 666 n.3. See

Wilson v. Northcutt, 987 F.2d 719, 722-23 (11th Cir. 1993) (recognizing the question left open

by Daniels and noting that “[b]ecause . . . the appellees’ conduct did not rise to the level of gross

negligence, we leave for another day the determination of whether gross negligence can support a

§ 1983 [due process] claim”).

30

Clause, does not amount to a “deprivation” in the constitutional sense. Thus, a

negligent act or omission cannot provide a basis for liability in a § 1983 action

seeking compensation for loss of liberty occasioned by a Brady violation. 

11

C. Whether Porter Has Produced Evidence Sufficient to Show that

Fairbanks’s Conduct in this Case was More than Merely Negligent

and that Fairbanks’s Conduct Caused the Brady Violation

Having established that a due process claim like Porter’s will not give rise to

§1983 liability in the absence of some evidence of more-than-negligent conduct on

the part of the defendant-law enforcement official, we now consider whether Porter

has produced sufficient evidence to create a triable issue of fact with regard to

Fairbanks’s culpability. We also consider whether Porter has shown an

“affirmative causal connection” between Fairbanks’s conduct and the denial of due

process occasioned by the Brady violation. 

1. The Karcinski Report
31

Regarding the Karcinski report, Porter’s claim against Fairbanks fails for

lack of causation. See Troupe, 419 F.3d at 1165. The causal chain relied upon by

Porter to support his due process claim with respect to the Karcinski report is this:

(1) Fairbanks did not give the report to the State Attorney’s Office, (2) the State

Attorney’s Office therefore never had the report, (3) because the State Attorney’s

Office never had the report, it could not disclose it to Porter’s defense, and (4)

because the report was not disclosed to his defense, Porter was denied his due

process right to a fair trial. A review of the record, however, conclusively

demonstrates that the second link in Porter’s causal chain is missing. The

undisputed evidence shows that the Karcinski report was in fact in possession of

the State Attorney’s Office prior to Porter’s trial in August 1988. Accordingly, the

record makes plain that the report was turned over to the prosecution by Fairbanks

or someone else, and thus any failure to disclose the report to Porter’s defense prior

to trial was necessarily caused by the prosecution, not Fairbanks. 

Karcinski gave testimony at a deposition in February 1988, some six months

before Porter’s trial. The transcript of that deposition is part of the record in this

case. Four individuals were present at the deposition: (1) Karcinski, (2) Carl

Johnston, an Assistant State Attorney who covered the deposition for Mansfield,

(3) McMillan, the Assistant Public Defender who handled Porter’s defense for a
32

brief period of time during the discovery phase of the proceedings, and (4) a court

reporter. At the time of the 1988 deposition, Karcinski was no longer employed by

the Pasco County Sheriff’s Office and, as a result, had not had an opportunity to

review any police reports — including his own — in preparation for his testimony. 

The police report Karcinski prepared on the night of the attack is the only one he

prepared in connection with the case. Karcinski has given undisputed deposition

testimony in this case that he did not have a copy of his police report with him

when he went into the 1988 deposition.

During questioning at the 1988 deposition, Karcinski had trouble

remembering specific details about the information Young had given him at the gas

station in the early morning hours following the attack. About halfway through the

deposition, Johnston — the Assistant State Attorney — asked Karcinski: “Is that

your report?” Karcinski responded affirmatively: “Uh-huh.” Johnston then said to

McMillan: “Do you want to give him an opportunity to review it?” To which

McMillan responded: “That’s fine with me.” The parties then went off the record

while Karcinski reviewed his report. Karcinski could not recall at his deposition in

this case which of the two attorneys handed him the report; but it was one of them.

Back on the record, McMillan stated: “The ex-deputy has had a chance to

review his report. . . .” McMillan then went on to ask Karcinski if, based on his
33

review of the report, he had anything further to add to his prior testimony regarding

the information he gathered from Young. Karcinski testified that he remembered

more of the details of the attack, but “[o]ther than that, I can’t recall any other, you

know, actual statements she had made. . . . [S]he was pretty much in a state of

shock.” Karcinski did not volunteer any information about the physical description

of the attacker Young gave him at the gas station, which was included in the report. 

Instead, with regard to the description given by Young, Karcinski stated: “She had

mentioned that it was dark, she was grabbed from behind, and that she did not get a

good look at the person who, you know — .” Cutting Karcinski off, McMillan said

he had no further questions, and the deposition concluded.

McMillan, at a deposition given in connection with this case, testified that he

did not remember obtaining a copy of Karcinski’s report before the 1988

deposition and that he did not remember reviewing the report while the deposition

was underway. McMillan further testified that, if he had received or reviewed the

report, he would have questioned Karcinski about the physical description Young

gave him at the gas station — a description that, again, Karcinski failed to mention

during the deposition. In the summary-judgment posture of this case, we assume

McMillan is correct when he says that he never saw the Karcinski report. We must

therefore assume that McMillan did not carry the Karcinski report into the 1988
34

deposition. That leaves Johnston as the only individual present who could have

brought Karcinski’s report to the deposition. Johnston has not given testimony in

this case. 

With respect to Porter’s claim against Fairbanks, it is irrelevant whether or

not McMillan ever saw a copy of the Karcinski report. To establish the

“affirmative causal connection” between Fairbanks and the alleged constitutional

violation, as required by Troupe, 419 F.3d at 1165, Porter would have to show both

that Fairbanks withheld the Karcinski report from the prosecution and that the

prosecution did not obtain the report from anyone else. The focus of our inquiry,

then, is on whether the prosecution received the report. The transcript of the 1988

deposition — coupled with Karcinski’s undisputed testimony that he did not carry

the report to the deposition and our assumption that McMillan could not have done

so either (because he never saw it) — makes clear that Johnston, the Assistant State

Attorney, had possession of the report at the time of the deposition. Given the

undisputed state of the record, it is impossible to say that any act or omission by

Fairbanks caused the prosecution not to receive the Karcinski report. It is therefore

impossible to say, with respect to this report, that Fairbanks’s conduct caused the

Brady violation. Rather, it appears that the prosecution had possession of the

report, but that somewhere along the way the report failed to reach the defense,
35

thus giving rise to the Brady violation.

2. The Hendrickson Report

Porter argues that the following facts would permit a reasonable juror to

infer that Fairbanks intentionally withheld the Hendrickson report from the

prosecution:

(1) that Detective Fairbanks had the Hendrickson . . . report[] before

the Michael Porter trial in 1988; (2) that Detective Fairbanks was

required by PCSO policy to turn over [that report] to the State

Attorney’s Office; (3) that Detective Fairbanks understood he was

required by PCSO policy to turn over [that report] to the State

Attorney’s Office; and (4) that [the Hendrickson report] w[as] in fact

never turned over to the State Attorney’s Office.

Porter Br. at 25. We disagree. We have meticulously combed the record and have

found no evidence — beyond the evidence as summarized in Porter’s own brief and

beyond his conclusory allegations — to bolster Porter’s assertion that Fairbanks

intentionally withheld the Hendrickson report from the prosecution. 

The strongest permissible inference that one might conceivably draw from

these facts is that the Hendrickson report failed to reach the State Attorney’s Office

on account of some negligent act or omission properly attributable to Fairbanks, the

official charged with the duty to deliver the police reports to the prosecution. Even

that inference, however, is doubtful given how little anyone involved with the

investigation and prosecution of this case can remember about the circumstances
 Indeed, there is considerable doubt that Fairbanks or his office was even the cause of 12

the defense’s non-use of the Hendrickson report. The fact that the Hendrickson report was not

located in the public defender’s file in 1994 — six years after Porter’s first trial, when Fulgieri

conducted his investigation in connection with Porter’s federal habeas petition — is of little

probative value, because the public defender’s file contained no police reports at all, and Porter

has never alleged that he did not receive for use at trial Fairbanks’s report, which, incidentally,

contains a description of Young’s attacker at odds with the description Young gave Karcinski

immediately following the attack. Assuming that the Hendrickson report never reached Porter’s

trial counsel, Dehnart, the possible causes are several — the report could have been misplaced in

Fairbanks’s office, in the prosecutor’s office, or in the office of Porter’s initial defense attorney,

McMillan, who conducted pretrial discovery, but whose representation of Porter was interrupted

three to four weeks before trial by a serious illness. Moreover, we know that another police

report that the defense did not get, the Karcinski report, was in fact in the possession of the

prosecutor’s office at least six months before trial. There is absolutely no evidence suggesting

that the misplacement of the Hendrickson report occurred in Fairbanks’s office, rather than in

one of the other two. Although we doubt Porter has adduced sufficient evidence on causation

with respect to the Hendrickson report, we need not reach that question in light of our conclusion

that, even assuming Porter could demonstrate causation, there is no evidence that Fairbanks

engaged in any more-than-negligent conduct. 

36

surrounding the handling of this report. Even assuming that the Hendrickson 12

report was misplaced by negligence in Fairbanks’s office, however tenuous that

assumption, there is no evidence of ill-will or motive on the part of Fairbanks. 

Indeed, there is absolutely no evidence from which a jury could reasonably infer

intent to withhold, recklessness, or anything more than mere negligence. Because

Porter is unable to show that the Hendrickson report failed to reach the State

Attorney’s Office as a consequence of some more-than-negligent act or omission

on the part of Fairbanks, we must reject his due process claim. 

IV. CONCLUSION

We conclude that Porter has failed to create a genuine issue of material fact
37

on his due process claim against Fairbanks. Because Porter’s claim against

Fairbanks fails on the merits, we need not reach the second prong of the qualifiedimmunity analysis. See Ferraro, 284 F.3d at 1194; see also Saucier, 533 U.S. at

201, 121 S. Ct. at 2156. Our conclusion that Fairbanks did not violate Porter’s due

process rights means that Porter’s claims against White fail. See Los Angeles v.

Heller, 475 U.S. 796, 799, 106 S. Ct. 1571, 1573 (1986); see also Rooney v.

Watson, 101 F.3d 1378, 1381-82 (11th Cir. 1996); Vineyard v. County of Murray,

Ga., 990 F.2d 1207, 1211 (11th Cir. 1993). Accordingly, the judgment of the

district court is affirmed.

AFFIRMED.